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FOI Advisory Council Opinion AO-05-18

AO-05-18

August 8, 2018

Aaron Stevenson
Vinton, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail messages dated February 14, 2018.

Dear Mr. Stevenson:

You have asked for a formal advisory opinion regarding whether some of the practices of the Franklin County School Board (the Board) comply with the Virginia Freedom of Information Act (FOIA). Because your questions cover two broad topic areas—(i) access to public records and (ii) closed meetings of the Board—I will address the questions in two parts, respectively.

Topic Area One: Access to Public Records

Question Presented

You have asked whether the Board may require a citizen of the Commonwealth to provide a driver's license or other official photographic identification when the citizen makes a request for public records under FOIA.

Factual Background

You stated that the Board has adopted a policy that a requester must present a press identification, a driver's license or other official photo identification showing that the requester is a citizen of the Commonwealth, or a photocopy of either type of identification before the requester is allowed to inspect any public record or receive copies of any public record.1

Applicable Law and Discussion

FOIA is silent on the specific issue of whether a public body can require all citizens to provide a driver's license or other form of official photo identification. We must therefore look at the overall policies of FOIA and the current requirements for requesters and custodians.

FOIA's stated policy is to ensure "the people of the Commonwealth ready access to public records." Furthermore, it is to "be liberally construed to . . . afford every opportunity to citizens to witness the operations of government."2 Regarding public records, they are to "be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth."3 In order to obtain public records pursuant to FOIA, requesters must (a) be a citizen of the Commonwealth, a representative of newspapers and magazines with circulation in the Commonwealth, or a representative of radio and television stations broadcasting in or into the Commonwealth and (b) identify the requested records with reasonable specificity.4 The only additional requirement of requesters that FOIA specifically addresses is that the requester may need to provide his name and legal address if the custodian so requires.5 FOIA does not go further to require photo identification.

There are therefore two interests that may be in conflict in some instances. One is confirming that a requester is a citizen of the Commonwealth, assuming that the requester has not already been categorized as a representative of media outlets in the Commonwealth. The other is affording every opportunity to citizens to view public records absent an enumerated exemption. In the factual scenario you have provided, all citizens are required to present a driver's license or other form of official photo identification that shows the person is a citizen of the Commonwealth. While "official photo identification" is not entirely clear, we can assume that it would include identification methods similar to those required for voting in the Commonwealth.6However, obtaining some of those forms of identification requires payment and specific documentation and therefore may not be a viable option for some citizens of the Commonwealth who are indigent or who lack the capabilities to obtain proper documents. Voter identification cards are free, but some citizens of the Commonwealth who would be unable to obtain a voter identification card would nonetheless certainly have a right to public records under FOIA, such as an individual who has lost the right to vote, a legal alien, or an individual in the military who has moved temporarily and who only holds a military ID without a Virginia address on it. The requirement therefore does have the potential to restrict access to records that should otherwise be open for inspection by all citizens of the Commonwealth. While it may be important for a custodian to verify citizenship of the Commonwealth, especially if there is a specific concern regarding an individual's stated address, this interest must be balanced against the overall purpose of FOIA.

This office has addressed a similar issue in regard to a public body requiring either a photo ID or that a person's picture and signature be taken before being allowed entrance into open meetings.7 The scenario in that case was slightly different in that the measures were put in place by a location for security purposes. Additionally, anyone who did not have an ID or did not want to provide one could have their photo taken and enter into the meeting. We therefore opined that having a neutral and universal application, as well as an alternative for individuals who do not have an ID, does not render the meetings inaccessible to anyone in that case.8 In the instant case, however, the policy has no such alternative for individuals lacking an official photo identification and therefore may limit access to a number of citizens in a way that FOIA does not anticipate.

Conclusion

A custodian may certainly require a requester to provide his legal name and address. Custodians may also ask for verification that a requester is a citizen of the Commonwealth, a representative of newspapers and magazines with circulation in the Commonwealth, or a representative of radio and television stations broadcasting in or into the Commonwealth. Requiring a specific form of identification without an alternative for those who do not have such identification, however, can restrict access to information promised by the policy of FOIA and would be in violation of that policy.

Topic Area Two: Closed Meetings of the Board

Questions Presented

You have asked whether motions made by the Board to enter into closed meetings comply with the requirements of FOIA and whether the Board must comply with the motions requirements for each closed meeting that occurs during an open meeting.

Factual Background

In the materials you provided, you stated that the Board holds a regular meeting once a month. Customarily, the Board holds a closed meeting shortly after opening each meeting. Minutes of the meetings show that when the Board goes into closed meetings it uses substantially similar motions each time. You provided an example of such motion for meetings from July 2014 through July 2017 that stated, "On motion by [the movant] seconded by [the second], the Board voted unanimously to convene a closed meeting for the purpose of discussion of action regarding employee performance, Section 2.2-3711(A)(3) - Discussion or consideration of the acquisition or the disposition of real property for a public purpose." Additionally, you provided an example of such motion from the time period after August 2017 that stated, "On motion by [the movant] seconded by [the second], the Board voted unanimously to convene a closed meeting for the purpose of discussion of action regarding employee performance, Section 2.2-3711(A)(3) - Discussion of action involving students which is authorized by section 2.2-3711(A) of the Code of Virginia." For this analysis, we will examine these specific examples you provided.

You also stated that there is often a second closed meeting that occurs immediately prior to the adjournment of the open meeting. When the second closed meeting takes place, you noted, the motion to enter into it differs greatly from the Board's other motions to enter closed meetings. You provided an example that states, "On motion by [the movant] seconded by [the second], the Board unanimously voted to convene a second closed session."

Applicable Law and Discussion

FOIA requires that all meetings of public bodies be open to the public unless a public body elects to use a properly invoked exemption. In order for a public body or its officer or employees to invoke such an exemption, a motion must be made with all three elements of (1) identifying the subject matter, (2) stating the purpose of the meeting, and (3) citing the applicable exemption from open meetings requirements.9 This office has previously opined that quoting or paraphrasing one of the exemptions in subsection A of § 2.2-3711 of the Code of Virginia satisfies the requirement of stating the purpose of the meeting.10 Furthermore, providing the citation in the Code of the specific exemption satisfies the third requirement listed above.11

On the basis of the facts you have provided, the format used by the Board could satisfy at least two elements required for a motion to enter into a closed meeting. Citing the correct Code section and paraphrasing or quoting the exemption would satisfy all but the requirement of identifying the subject. In the two examples you provided, it appears that either citations to Code sections are lacking or incorrect Code sections are referenced. Each motion states that one purpose of entering into the closed meeting was for discussion of action regarding employee performance, but neither references the applicable subsection A 1 of § 2.2-3711. Additionally, the second example cites subsection A 3 of § 2.2-3711 but does not state the acquisition of real property as the reason. Instead, the reason given is an action involving students, which would be properly cited at subsection A 2 of § 2.2-3711. One portion of the provided examples would satisfy these two elements when the Board states, "Section 2.2-3711(A)(3) - Discussion or consideration of the acquisition or the disposition of real property for a public purpose." By not including proper citations in each instance, the purpose of the closed meeting is confusing to the public and inadequate for even those two out of the three requirements.

The particular examples you provided also do not include identification of the subject of the closed meetings. While a public body need not identify the subject with such specificity as to defeat the reason for going into a closed session, it should at least provide the public with general information as to the object of discussion.12 This office has before suggested that it may be helpful to think of the subject as what the meeting is about and the purpose as why the meeting is occurring.13 While the two examples you have provided do give some of the reasons why the meetings are occurring by referencing the Code sections, they do not describe the subject and the citations do not match the stated purposes. On the basis of the information you have provided, the motions are insufficient as a matter of law because they lack the element of describing the subject of the closed meeting and fail to correctly cite the applicable exemptions from the open meeting requirements.

Your final question is whether the Board must comply with these motion requirements if it wishes to go into a second closed meeting during the same open meeting. The answer is yes, the motions requirements apply to any closed meeting. Subsection A of § 2.2-3712 states that "[n]o closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion." It then describes the three requirements in clauses (1), (2), and (3) above. The language of the statute is clear that these requirements apply to any closed meeting. In the example you provided regarding the second closed meeting, none of the three elements is met, and the public would be left unaware as to what the meeting entailed at any level. If a motion to enter into a closed meeting were made in such manner, it would be insufficient.

Conclusion

In order for a public body to enter into a closed meeting, it must make a proper motion that includes (A) the subject matter of the meeting, (B) the purpose of the meeting, and (C) the citation to the applicable exemption from the open meetings requirements. The purpose of the meeting and the citation requirement can be met by quoting or paraphrasing the Code section and providing a citation to the Code section. That alone is not sufficient to satisfy the requirement of providing the subject matter. Without describing the subject, the motion is insufficient, as appears to be the case in the examples you provided. Additionally, the public body must reference each exemption and ensure that it is the correct citation. Furthermore, these requirements apply to any motion to enter into a closed meeting, even if multiple closed meetings occur within the same open meeting.

Thank you for contacting this office. I hope that we have been of assistance.

Sincerely,

Chad M. Ayers
Attorney

Alan Gernhardt
Executive Director

1KBA-R: Requests for Information, Franklin County Public Schools Policies and Regulations, https://www.boarddocs.com/vsba/frco/Board.nsf/Public# (last visited June 11, 2018).ford County Board of Supervisors, https://staffordcountyva.gov/319/Board-of-Supervisors (last visited April 24, 2018).2§ 2.2-3700.3Subsection A of § 2.2-3704.4Subsections A and B of § 2.2-3704. 5Subsection A of § 2.2-3704.6Examples of those identification methods include United States passports, other government-issued identification cards, college or university student photo identification cards, an employee identification card containing a photograph of the person, or a Virginia voter identification card.7Freedom of Information Advisory Opinion 05 (2008). 8Id.9§ 2.2-3712.10See Freedom of Information Advisory Opinion 02 (2018) (providing a similar analysis regarding motions to enter into a closed meeting and distinguishing subject matter from the purpose of the closed meeting).11Id.12Id.13Id.